Property Of the enemy belongs to the State: Supreme Court

Enemy property must go to the State if at all it is an enemy property, the Supreme Court said. A bench comprising Chief Justice J S Khehar and Justice N V Ramana said that it is a sensitive matter and it is for Parliament to debate on it and not the court. "Enemy property must go to the State provided that it is that of enemy," the bench said after senior a advocate Anand Grover, appearing for Congress member in Rajya Sabha Husain Dalwai, said that it is a serious issue and needs to be debated. 

While disposing of a petition filed by Dalwai who questioned the promulgation of Enemy Property (Amendment and Validation) Fifth Ordinance, 2016, the bench said that the petitioner should raise the issue in Parliament.
Grover said that if a person migrated to Pakistan or Bangladesh, then his or her legal heirs and successors would face problems due to the ordinance. 

"If the issue is so serious and sensitive and the nation's security is at risk, then you should debate in Parliament. You are a Member of Parliament, you should debate there. We are agreeing with you that this needs to be debated but it is for Parliament to debate on the subject," it said.

Grover said that the ordinance cannot be promulgated time and again and it has now been promulgated for the fifth time. "This promulgation of the ordinance can't go on. There is the apex court's judgement on this," he told the bench. The court, however, asked Grover if he wished to withdraw the petition, which he did.

On December 23, 2016, the ordinance was repromulgated for the fifth time after the government failed to pass the bill in Rajya Sabha during the Winter Session due to repeated adjournments over the demonetisation issue. The ordinance amends a nearly 50-year-old law to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after wars. 

The ordinance was for the first time promulgated on January 7 this year. It was passed by Lok Sabha on March 9 but was subsequently referred to Select Committee of Rajya Sabha. "Enemy property" refers to any property belonging to, held or managed on behalf of an enemy, an enemy subject or an enemy firm. An ordinance is promulgated again when Parliament is not in session and a bill to replace it is not passed.

The Supreme Court on Monday declined to entertain a petition challenging the Central Government?s move to promulgate the Enemy Property Act ordinance.

President Pranab Mukherjee promulgated the Enemy Property (Amendment and Validation) Ordinance 2016, earlier on January 7 last year to make amendments to the Enemy Property Act 1968.

The amendments through the ordinance include - once an enemy property is vested in the custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc; the law of succession does not apply to enemy property; there cannot be transfer of any property vested in the custodian by an enemy or enemy subject or enemy firm and that the custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

The amendments to the Enemy Property Act 1968 will plug the loopholes to ensure that the enemy properties that have been vested in the custodian remain so and they do not revert back to the enemy subject or enemy firm.

The Enemy Property Act was enacted in the year 1968 by the Government of India, which provided for the continuous vesting of enemy property in the Custodian. The Central Government through the Custodian of Enemy Property for India is in possession of enemy properties spread across many states in the country. In addition, there are also movable properties categorised as enemy properties.